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2018 DIGILAW 153 (JHR)

Manjit Kumar Singh v. Union of India

2018-01-18

S.N.PATHAK

body2018
JUDGMENT : Dr. S.N. Pathak, J. Heard the parties. 2. The petitioners have approached this Court with the following prayers: "(I) For quashing the punishment order dated 31.8.2010 issued by the Chief Security Commissioner. (II) For a direction to the respondents to treat the entire period during which the deceased father of the petitioners remained out of service as on duty and to pay the back wages i.e. for the period from 30.4.1997 to the date of reinstatement without any further delay.”DD 3. Sans details, the facts as averred in the writ petition, in a nutshell is that the deceased father of the petitioners was initially appointed in the year 1979 as a constable under the respondents and since then he was in continuous service until the date of his compulsory retirement i.e. 31.3.1997. A memorandum of charge-sheet dated 21.9.1995 was issued to the deceased father of the petitioners, alleging therein the negligence on part of him, while he was on duty on 16.8.1995. It was alleged that he failed to prevent and detect the theft of six bags of wheat from Railway wages (sic-wagons?) by the local criminals whereas, the charge No. 2 was for suppressing the matter to evade timely action for recovery of the stolen wheat and charge No.3 was regarding alleged misbehaviour with Sri Ajay Kumar, H.Q./GMO. After receipt of the same, the deceased father or the petitioners filed his explanation, wherein he refuted and denied the charges against him and accordingly, requested to exonerate him from the charges. But the respondents being not satisfied with the explanation proceeded for a departmental proceeding against the deceased father of the petitioners in connection with the aforesaid charges. After enquiry, the Enquiry Officer submitted the enquiry report before the Disciplinary Authority and on the basis of enquiry report, the Disciplinary Authority issued the punishment order dated 31.3.1997, whereby and whereunder the deceased father of the petitioners was made to retire compulsorily w.e.f. 30.4.1997 after holding guilty for the charges levelled against him. Aggrieved thereby, the deceased father of the petitioners preferred appeal before the Appellate Authority, stating all possible grounds, but the Appellate Authority did not consider the case of the deceased father of the petitioners and accordingly, vide order dated 19.9.1997 rejected the same. Aggrieved thereby, the deceased father of the petitioners preferred appeal before the Appellate Authority, stating all possible grounds, but the Appellate Authority did not consider the case of the deceased father of the petitioners and accordingly, vide order dated 19.9.1997 rejected the same. It is the further case of the petitioners that the deceased father of the petitioners was due to superannuate after 15 years from the date of compulsory retirement and therefore, impositions of punishment of compulsorily retirement is a major punishment, being aggrieved with the order of respondents, the deceased father of the petitioners had moved before this Hon'ble Court in CWJC No. 3575 of 1997(R) and vide order dated 5.2.2004, the Hon'ble High Court quashed the punishment order of compulsory retirement dated 31.3.1997 as also the appellate order dated 23.3.2004 and the matter was remitted back to the disciplinary authority viz. the Divisional Security Commissioner with a direction to pass a fresh order only on the quantum of punishment after giving ample opportunity for hearing and taking into consideration the Rule 155 of the Railway Protection Force Rules, 1987. In compliance of the order and direction of this Hon'ble Court, the respondent No.4 called the deceased father of the petitioners for his personal hearing on 12.3.2004 and vide office order dated 23.3.2004 again imposed the same punishment order of compulsory retirement against the deceased father of the petitioners, holding that there is no cogent reason to intervene with the punishment order at this stage because the punishment of compulsory retirement awarded to the deceased father of the petitioners is commensurated and most justified. Being aggrieved with the same, the deceased father of the petitioners moved before this Hon'ble High Court in W.P.(S) No. 729 of 2005 for quashing the punishment order dated 23.3.2004 as also for a direction to the respondents to reinstate the petitioner on services and vide order dated 10.4.2007 the said writ petition was dismissed as withdrawn with a liberty to move before the Appellate Authority along with a petition for condonation of delay and the respondents were directed to dispose of the same expeditiously. In pursuance to the order and direction dated 10.4.2007, the petitioner filed appeal along with the petition for condonation of delay, the Appellate Authority vide order dated 11.4.2008 disposed of the said Appeal, which was served to the counsel for the petitioner on 17.4.2010 along with their show cause dated 17.4.2010 filed in Cont. (Civ.) Case No. 223 of 2009. It is the further case of the petitioners that deceased father of the petitioners filed revision application for review of the order of punishment passed by the Disciplinary Authority and upheld by the Appellate Authority. The Reviewing Authority i.e. Chief Security Commissioner passed the order dated 31.8.2010, whereby and whereunder, the pay of the father of the petitioners has been reduced to the lowest pay in the basic grade of constable (without mentioning the grade as required under Rule) w.e.f. 30.4.1997 i.e. the date on which punishment order of compulsory retirement came into effect, with immediate effect and it was further ordered that the period during which the father of the petitioners has not worked shall be treated as 'Dies-non' and shall not be entitled to any back wages for said period. Left with no other efficacious, alternative and speedy remedy, the petitioners have been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of their grievances. 4. Ms. M.M. Pal, Sr. Advocate assisted by Ms. Ruby Pandey, learned counsel appearing on behalf of the petitioners submitted that the order dated 31.8.2010 is illegal, arbitrary and too harsh than warranted and even too severe than earlier punishment order of compulsory retirement. This Hon'ble Court vide order dated 5.2.2004 passed in CWJC No. 3575 of 1997 quashed the punishment order of compulsory retirement and directed the Disciplinary Authority to pass a fresh order only on the quantum of punishment. This Hon'ble Court vide order dated 5.2.2004 passed in CWJC No. 3575 of 1997 quashed the punishment order of compulsory retirement and directed the Disciplinary Authority to pass a fresh order only on the quantum of punishment. Learned counsel further argued that the order passed by this Hon'ble Court was never complied and no orders were passed on the quantum of punishment and the Disciplinary Authority did not consider the same and in spite of specific direction, the Revisional Authority in place of Disciplinary Authority, passed the order of punishment of reduction to a lowest pay in the basic grade of constable w.e.f. 30.4.1997 with cumulative effect and the entire period of his absence was ordered to be treated as dies-non and it was also observed that the father of the petitioners shall not be entitled for any back wages, which is bad in law. Learned Sr. Counsel further argued that the respondents in spite of specific direction to reduce the punishment of compulsory retirement, never considered the Rule 155 of Railway Protection Force Rules, 1987 and without adhering to the said rule, the order of punishment was passed hurriedly. It is further stated that the respondents have imposed the much more harsh punishment than what was given earlier and as such, the order of punishment is fit to be quashed and set aside. To buttress her argument, learned Sr. Counsel has referred to and relied upon the judgment delivered by the Hon'ble Apex Court in case of Vijay Singh vs. State of U.P. & Ors., reported in 2012 INSC 222 and in case of B.C. Chaturvedi Vs. Union of India & Ors. reported in AIR 1996 SC 484 . 5. Per contra counter-affidavit has been filed by the respondents. Learned counsel for the respondents vehemently opposed the contentions advanced by the learned counsel for the petitioners and submits that in light of order dated 6-8-2010 passed by this Hon'ble Court in the present case, the Revisionary Authority reviewed the order of punishment i.e. compulsory retirement w.e.f 30.4.1997 passed by the Disciplinary Authority and Divisional Security Commissioner/RPF/EC Rly./Dhanbad and upheld by the Appellate Authority and Deputy Chief Security Commissioner/RPF/EC Rly./Hajipur is revised to a lower punishment of reduction to the lowest pay in the basic grade of constable w.e.f. 30.4.1997 (the date from which original punishment of compulsory retirement came into force) with cumulative effect. The period during which the father of the petitioners has not worked shall be treated as 'Dies-Non' and shall not be entitled to any back wages for the said period. Learned counsel for the respondents justified the impugned order on the ground that it was the minimum punishment which the petitioner could have been given because no reduction in rank or grade could be imposed upon the appellant being on account of his lower in rank as Constable (Direct recruitment) in terms of Rule No. 157.1 of the RPF Rules, 1987 and as such, a lenient view was taken by the disciplinary authority, which is a bare minimum under major penalty so as to facilitate the petitioner to get pensionary benefits. Learned counsel further argues that Rule 155 of RPF Rules, 1987 has been considered as per the order passed by this Hon’ble Court. The deceased father of the petitioners was provided all the reasonable opportunity to defend his case and he was found guilty of charges leveled against him. 6. Learned counsel further argued that in revision, the order of Disciplinary Authority affirmed by the Appellate Authority was revised to lower punishment to the lowest basic grade of constable w.e.f. 30.4.1997 i.e. the date from which the original punishment of compulsory retirement came into force. Learned counsel further argues that the period for which the deceased father of the petitioners has not worked is treated as 'Dies-non' and he is not be entitled to any back wages for said period. On such circumstances, learned counsel for the respondents submitted that this writ is devoid of any merit and is liable to be dismissed. 7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioners needs consideration. The order passed by this Court for quashing the order of punishment of compulsory retirement and for re-consideration of the same on quantum of punishment was never considered by the respondents-authorities. Once the compulsory retirement has held to be shockingly disproportionate then the same punishment cannot be awarded again by the Disciplinary Authority and by the Appellate Authority. The order passed by this Court for quashing the order of punishment of compulsory retirement and for re-consideration of the same on quantum of punishment was never considered by the respondents-authorities. Once the compulsory retirement has held to be shockingly disproportionate then the same punishment cannot be awarded again by the Disciplinary Authority and by the Appellate Authority. The relevant Rules of Railway Servants (Discipline & Appeal) Rules, 1968 reads as under:- Major Penalties:- (VI) Reduction to a lower time scale of pay, grade, post or service, with or without further directions regarding conditions of restoration to the grade or post or service from which the Railway servant was reduced and his seniority and pay on such restoration to that grade, post or service; (VII) Compulsory retirement; From bare perusal of Penalty and Disciplinary Rules, it is clear that both VI & VII comes under the category major punishment. Order of reduction to specify the period:- The order imposing the penalty of reduction to lower service, grade or post or to lower time-scale should, inter alia, invariably specify: (a) The period of reduction, unless the clear intention is that the reduction should be permanent or for an indefinite period; and (b) Where the period of reduction is specified, whether on re-promotion Railway servant will regain his original seniority-in the higher service, grade or post or higher time-scale which had been assigned to him prior to the imposition of the penalty. The order of reduction to be specific :- Every order passed by a competent authority imposing the penalty of reduction to a lower stage in time-scale should indicate:- (a) The date from which it will take effect and the period for which the penalty shall be operated; (b) The stage in the time-scale (in terms of rupees) to which the Railway servant is reduced; and (c) The extent (in terms of years and months, if any) to which the period referred to in (a) above should operate to postpone future increments. The reduction to a lower stage in a time-scale for an unspecified period or as a permanent measure is not permissible under the Rules. When an employee is reduced to a particular stage his pay will remain constant at the stage for the entire period of reduction. The period to be specified under (c) should not in any case exceed the period specified under (a) above. 8. When an employee is reduced to a particular stage his pay will remain constant at the stage for the entire period of reduction. The period to be specified under (c) should not in any case exceed the period specified under (a) above. 8. Admittedly, the deceased father of the petitioners is a member of Railway Protection Force and as such, he is guided by Railway Protection Force Rules, 1987 and not by the Rules of Railway Servants (Discipline & Appeal) Rules, 1968. Chapter XII of the Railway Protection Force Rules, 1987 deals with the matter related to Disciplinary and Penal Punishments applicable to the RPF Personnel. Further, Rules 148.2 and 148.3 of the said 1987 Rules deals with the descriptions of Major Punishments and Minor Punishments, which reads as follows: 148.2. Major Punishments.-(a) Dismissal from service (which shall ordinarily be a disqualification for future employment under the Government). (b) Removal from service (which shall not be a disqualification for future employment under the Government). (c) Compulsory retirement from service. (d) Reduction in rank or grade. 148.3. Minor Punishments.-(a) Reduction to a lower stage in the existing scale of pay. (b) Withholding of next increment with or without corresponding postponement of subsequent increments. (c) Withholding of promotion for a specified period. (d) Removal from any office of distinction or deprivation of any special emoluments. (e) Censure. 9. The Hon'ble Apex Court in case of Maneka Gandhi vs. Union of India, reported in AIR 1978 SC 597 , the punishment/penalty awarded has to be reasonable; and if it be unreasonable, Article 14 would be violated. That Article 14 gets attracted in a case of disproportionate punishment was the view of Hon'ble Apex Court in Bhagat Ram vs. State of Himachal Pradesh, reported in (1983)2 SCC 442 also. Now if Article 14 were to be violated, it cannot be doubted that a High Court can take care of the same by substituting, in appropriate cases, a punishment deemed reasonable by it. 10. It has already been held by this Court that the punishment of compulsory retirement was harsh and as such, required to be substituted by a lesser punishment. The substitute punishment would have been lesser than what was awarded earlier in view of the order passed by this Court in CWJC No. 3375 of 1997. 10. It has already been held by this Court that the punishment of compulsory retirement was harsh and as such, required to be substituted by a lesser punishment. The substitute punishment would have been lesser than what was awarded earlier in view of the order passed by this Court in CWJC No. 3375 of 1997. Since the order was never complied with and the deceased father of the petitioners was harassed at the hands of the respondents and at present he is no more, the entire family members were put in a great hardships and was compelled to move this Court time and again. 11. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, I hereby quash and set aside the impugned order dated 31.8.2010 as contained in Annexure-8 to the extent of payment of back wages, which has been denied. The petitioner did not work as the respondents did not allow him to work. It is not that the petitioner was absent on his own. As the matter was already remanded back earlier, there is no need to remand the matter back again and as the father of the petitioners has already died and was earlier reinstated in the services. This Court is of view that the deceased father of the petitioners was a member of disciplined force, no relaxation can be given in the matter of disobedience and dereliction of duty. It is unbecoming of a police personnel to act in aforesaid manner, misbehaving with the higher Senior Officials. Admittedly, the deceased father of the petitioners was not fully exonerated of the charges and as such, he is not entitled for full backwages. This order is being passed in a peculiar facts and circumstances of the case and cannot be treated as a precedent. As the father of the petitioners has already died, this Court directs the respondents to pay 25 per cent of the back-wages to the petitioners for the period of absence from duties of the deceased employee. 12. With the aforesaid observations, the writ petition is disposed of.